NORTHERN TERRITORY ANTI-DISCRIMINATION COMMISSION
LOCATION:
DARWIN
TRIBUNAL:
SIMON RICE
HEARING COMMISSIONER
DATE OF HEARING:
30 April, 1 May, 2012
HEARING NO:
C20100027-02
COMPLAINANTS:
PEREIRA
RESPONDENT:
COMMISSIONER OF POLICE
REPRESENTATIVES:
Mr Mahendra, Barrister, for Complainant
Ms Eastman, Barrister, for Respondent
DATE OF DECISION:
Written Decision given on 15 August 2012
REASONS FOR DECISION
1. DECISION:
1.1.
For the reasons set out below, I find that the prohibited conduct
alleged in the complaint is not substantiated, and I dismiss the
complaint.
2. FACTUAL BACKGROUND
2.1.
Mr Pereira was detained by state authorities in East Timor for 30
days in November – December 2002, after an incident involving a
firearm. In early 2003 he left East Timor and has not returned. The
circumstances of his detention and release are the subject of
dispute, and are considered in detail below.
2.2.
In November 2007 Mr Pereira was employed by the Northern
Territory Commissioner of Police (‘Police Commissioner’) as a trainee
constable, but did not disclose to the Police Commissioner any
information concerning his detention in East Timor. He commenced
the trainee course in Feb 2008 and completed it on 7 August 2008.
During July 2008 the Police Commissioner became aware of the
incident in East Timor. On 7 August 2008 the Police Commissioner
terminated Mr Pereira’s employment.
2.3.
Reference in this decision to ‘the relevant time’ is a reference to the
period July-August 2008, which is the period when the Police
Commissioner decided to terminate Mr Pereira’s employment.
3. COMPLAINT
3.1.
Mr Pereira believes that what happened to him in East Timor was a
reason for the Police Commissioner’s terminating his employment, and
in early 2009 Mr Pereira made a complaint to the Australian Human
Rights Commission of discrimination on the basis of his having a
criminal record.
He withdrew that complaint and later in 2009 he
made a complaint to the Northern Territory Anti-Discrimination
2
Commissioner (AD Commissioner) of discrimination on the basis of his
having an irrelevant criminal record.
3.2.
The AD Commissioner accepted Mr Pereira’s complaint on 15
September 2009, and a delegate of the AD Commissioner investigated
the complaint. The delegate was satisfied that there was prima facie
evidence to substantiate the allegation of prohibited conduct, and Mr
Pereira’s complaint proceeded to conciliation.
That process did not
resolve the complaint, and Mr Pereira’s complaint was then referred to
a hearing.
3.3.
The Police Commissioner applied to the AD Commissioner, under s102
Anti-Discrimination Act (AD Act) to discontinue the proceedings, but
that application was dismissed (Pereira v Commissioner of Police, NT
Anti-Discrimination Commission, 29 August 2011).
4. FACTS IN ISSUE
4.1.
Mr Pereira’s complaint is that the Police Commissioner discriminated
against him because of his attribute of ‘irrelevant criminal record’ (ss
4, 19, 20, 31 AD Act).
4.2.
The conduct itself is not in issue; the parties agree that Mr Pereira’s
employment was terminated. What is in issue is why Mr Pereira’s
employment was terminated (ss 31), and whether the termination
was ‘less favourable treatment’ (s 20(1)).
4.3.
Mr Pereira says that a reason for the Police Commissioner’s dismissing
him was his having an irrelevant criminal record (ss 19(q)). The Police
Commissioner denies that Mr Pereira’s irrelevant criminal record was
a reason for his dismissal, and says that the sole reason was Mr
Pereira’s failure to disclose what had happened in East Timor.
5. JURISDICTIONAL FACT
5.1.
Before considering the evidence to decide why Mr Pereira’s
employment was terminated, and whether that termination was ‘less
favourable treatment’, I must decide whether Mr Pereira had, at the
relevant time, the attribute which he says was the reason for the
3
Commissioner’s conduct: an irrelevant criminal record.
The
Commissioner submitted that this is a fact of which I must be
satisfied before I can proceed to exercise jurisdiction under the AD
Act, that is, a jurisdictional fact.
5.2.
I agree that whether a complainant has an attribute prescribed in s
19(1) is a jurisdictional fact.
It is a fact ‘that will attract [the]
jurisdiction’ (State Electricity Commission v Rabel & Ors [1996] VSC
78 at [28]).
If a complainant did not at the relevant time have a
prescribed attribute, then I have no jurisdiction under the Act: ‘a
complaint must fall within the terms of the Act to be dealt with
under the Act’ (Rabel at [28]).
5.3.
Mr Pereira must prove, on the balance of probabilities, that the
prohibited conduct occurred (s 91(1)).
This burden extends to Mr
Pereira’s having to prove all elements that render the conduct
prohibited, including that he has a prescribed attribute.
5.4.
Procedurally, the issue should have arisen much earlier than it did.
The
Police
Commissioner
did
not
rely
on
the
question
of
jurisdictional fact in his signed ‘Respondent’s Statement of Facts,
Issues, Areas of Disagreement and List of Documents’ which was
filed in the proceedings in October 2010. Nor did he rely on it in his
application for me to discontinue the proceedings in January 2011,
when he argued that, for other reasons, the complaint was all or any
of misconceived, lacking in substance or failing to disclose any
prohibited conduct (Pereira, 29 August 2011).
5.5.
It was not until the morning of the hearing that the Police
Commissioner first argued that I cannot be satisfied as to the
particular jurisdictional fact of Mr Pereira’s having a prescribed
attribute. Mr Pereira did not contest that a complainant’s having a
prescribed attribute is a jurisdictional fact, and did not apply to
adjourn the hearing to be able to better address the issue. Counsel
for Mr Pereira addressed the issue in his opening, in evidence from
Mr Pereira, and in his submissions. I am satisfied that Mr Pereira’s
4
case was not prejudiced by the Police Commissioner’s late reliance
on the question of jurisdictional fact.
5.6.
One potential area of prejudice was Mr Pereira’s not having called his
wife to give evidence.
On the basis that she appears to have had
some knowledge relevant to whether Mr Pereira has an irrelevant
criminal record, counsel for the Police Commissioner submitted that
I should infer from her not having been called to give evidence that
any evidence she would have given would not have assisted Mr
Pereira’s case. In the reasons below I have arrived at my decision
without needing to have regard to the fact that Mr Pereira’s wife
could have given evidence, or that she did not give evidence.
6. IRRELEVANT CRIMINAL RECORD
6.1.
The jurisdictional fact on which Mr Pereira relies is that, at the
relevant time, he had the attribute of ‘irrelevant criminal record’.
Alternatively , Mr Pereira relies on the Police Commissioner’s having
believed at the relevant time that Mr Pereira had that attribute (s
20(2)(a))
6.2.
In my preliminary decision in this matter, (Pereira, 29 August 2011)
at paragraph 5.2 I expressed views about the meaning of the term
‘irrelevant criminal record’, saying that it invited an inquiry into the
‘relevance’ of a criminal record.
After hearing argument and
submissions on the issue I believe that I was wrong in what I said. It
remains the case that to refer to the attribute as an ‘irrelevant’
criminal record is unhelpful drafting, as it incorporates into the
definition an evaluation of the circumstantial status of the record;
the AD Act proscribes reliance on a record in certain circumstances,
and, but for (b)(ix) of the definition, it is the occurrence of those
circumstances which renders the record ‘irrelevant’. Whatever the
record is called in the AD Act, the factual issue is whether there is a
record which meets the statutory definition.
If there is then the
attribute exists, if not then it does not. I believe too that the view of
the Australian Human Rights Commission which I referred to – that
5
the term ‘irrelevant criminal record’ incorporates the defence found
in other legislation of ‘inherent requirements of a job’ – is wrong.
There is no ‘defence’ in the name the AD Act gives to the record
which is the prescribed attribute, and there is no argument to be
had about ‘inherent requirements of a job’ when deciding whether
the facts show that the statutory definition of the attribute of
‘irrelevant criminal record’ is satisfied.
6.3.
In sub-section (a) of the definition in s 4, an ‘irrelevant criminal
record’ is a spent record within the meaning of the Criminal Records
(Spent Convictions) Act.
6.4.
In sub-section (b) of the definition in s 4, an ‘irrelevant criminal
record’ is a ‘record relating to arrest, interrogation or criminal
proceedings’ where:
(i) no further action was taken in relation to the arrest, interrogation
or charge of the person; or
(ii) no charge has been laid; or
(iii) the charge was dismissed; or
(iv) the prosecution was withdrawn; or
(v) the person was discharged, whether or not on conviction; or
(vi) the person was found not guilty; or
(vii) the person's finding of guilt was quashed or set aside; or
(viii) the person was granted a pardon; or
(ix) the circumstances relating to the offence for which the person
was found guilty are not directly relevant to the situation in
which the discrimination arises.
6.5.
Although it is not explicit in the terms of the provision, my
understanding of the provision in the context in which it operates is
that the arrest referred to is the arrest of the person who claims to
have the attribute of irrelevant criminal record, the interrogation
6
referred to is the interrogation of the person who claims to have the
attribute of irrelevant criminal record, and the criminal proceedings
referred to are criminal proceedings of which the person who claims
to have the attribute of irrelevant criminal record is the subject.
6.6.
Subsection (b)(i) recognises that the circumstance where ‘no further
action is taken’ can arise for each of an arrest, an interrogation, and
proceedings.
The circumstances described in (ii)-(viii) may or may
not arise for each of an arrest, an interrogation or criminal
proceedings, and therefore suggest different permutations of what
could be an irrelevant criminal record. For example, a record might
relate to an arrest where the prosecution was withdrawn, or might
relate to an interrogation where no charge was laid, or might relate
to criminal proceedings where a finding of guilt was quashed.
6.7.
In deciding whether, at the relevant time, Mr Pereira had the
attribute of ‘irrelevant criminal record’ the factual questions are (1)
whether there existed a record relating to Mr Pereira’s arrest or
interrogation or criminal proceedings, and, if so, (2) whether any of
the circumstances in (b) existed.
6.8.
I consider later the alternative argument under s 20(2)(a) that the
Police Commissioner believed at the relevant time that Mr Pereira
had the attribute of ‘irrelevant criminal record’.
6.9.
In submissions, Mr Pereira says that his irrelevant criminal record is
one relating to an arrest where no further action was taken ((b)(i)), no
charge has been laid ((b)(ii)), the prosecution was withdrawn ((b)(iv)),
or he was granted a pardon ((b)(viii)). Mr Pereira is not able to be
more specific than this because although he can describe what
happened to him, he says is unable to characterise what happened
to him in formal procedural terms within the East Timorese legal
system.
His uncertainty in this regard leaves open the possibility
that at least some of the other circumstances in (4)(b) might describe
what happened.
7
7. THE EXISTENCE OF A RECORD
7.1.
There is no evidence of a record relating to interrogation of Mr
Pereira. There is, however, evidence of a record relating to the arrest
of Mr Pereira.
7.2.
Mr Pereira’s evidence – and his consistent view – has been that he
was not arrested. He appears to have had this view because nothing
happened that had, for him, the usual indictors of an arrest.
He
says that he was not told he was under arrest, that he was told that
he was being detained for his own safety, and that he did not
understand the nature of the consequent court proceedings. In the
hearing, under cross-examination, Mr Pereira agreed that he was
arrested. I accept that Mr Pereira has the genuine belief that he was
not subjected to what he recognised as an arrest, but the evidence
establishes that he was in fact arrested in a manner that is
recognisable in our legal system, that is, he was involuntarily
detained by officers of the state and charged with an offence.
7.3.
Annexure DG9 to the affidavit of Senior Sergeant Debra Gabolinscy
(Exhibit R3) is a document on the letterhead of the United Nations
Mission of Support in East Timor (UNMISET), dated 18 November
2002. It states, relevantly, ‘I request the safe custody of prisoner Rui
Fernando F. PEREIRA, arrested by Police on 16 November 2002, at
Dili, for the offence of Unlawful shooting’. The document is in the
case for the Police Commissioner. The Police Commissioner agrees
in submissions (para 62) that this document is ‘a record of an
arrest’.
7.4.
Accordingly, I am satisfied that at the relevant time there was a
record relating to the arrest of Mr Pereira.
7.5.
There is evidence of records relating to criminal proceedings
concerning Mr Pereira.
7.6.
I note that in Mr Pereira’s affidavit (Exhibit A1), he states that he
attended a hearing on or about 18 November 2002, the nature and
8
detail of which he did not understand.
In his oral evidence, he
states that he attended ‘what I think was a hearing’ on 18 November
2002.
7.7.
Exhibit R6 is a translation of what appears to be court record. The
translation, dated 20 December 2011, is by a translator accredited
with the (Australian) National Accreditation Authority for Translators
and Interpreters (NAATI).
The first page of the document is a
statement of facts by the District Attorney, from proceedings in Dili
in East Timor on 30 January 2003; it recites a version of the facts of
the incident that led to Mr Pereira’s arrest (a version which differs
from Mr Pereira’s own account), and it states that ‘the District
Attorney accuses [Mr Pereira] of [the crimes of] physical aggression
causing
injury
[and]
possession
of
a
firearm
without
licence/authorisation’.
7.8.
The second page of Exhibit R6 contains what appears to be three
extracts from a court record.
The first extract, titled ‘Page 96’,
records that ‘the defendant did not appear before the court and
therefore the judge adjourned the day of judgment’.
The second
extract, titled ‘Page 97’, records that ‘the firearm was submitted’ on
27 January 2004.
The third extract, titled ‘Page 98’, records that
‘judgment was passed … in the absence of the defendant and his
lawyer’, and that the judge ruled that the firearm be surrendered to
the State, a bond paid by the defendant be paid to the State, and
that the defendant be listed as a person prohibited entry to East
Timor.
7.9.
Exhibit R7 is a translation of a letter, dated 20 April 2003, from an
‘A da Costa’ who identifies themself in the letter as a ‘parent-in-law’
of Mr Pereira.
The translation, dated 20 December 2011, is by a
translator accredited with NAATI. The letter states that Mr Pereira
‘is completely incapable of appearing for His Judgement, which is set
for the 22nd day of April of 2003 at 9.30 because he has returned to
Portugal … ‘. The letter goes on to say ‘We thank Your Honour, with
9
all due respect to rule in the case of [Mr Pereira] in his presence or
absence’.
7.10.
In light of this evidence, I am satisfied that that at the relevant time
there was a record relating to criminal proceedings concerning Mr
Pereira.
8. THE EXISTENCE OF OTHER CIRCUMSTANCES: A GENERAL APPROACH
8.1.
The next question is whether, in relation to the record of arrest or
the record of criminal proceedings, there existed at the relevant time
any of the circumstances set out in (a) and (b) of the definition of
irrelevant criminal record.
8.2.
The circumstances set out in (a) and (b) describe three ways in which
a person with a record of arrest or a record of criminal proceedings
can have the attribute of ‘irrelevant criminal record’:
•
the person has been convicted but their conviction is ‘spent’
within the meaning of the Criminal Records (Spent Convictions)
Act ((a))
•
the person has been arrested, interrogated or the subject of
criminal proceedings, but there is no charge, prosecution, or
conviction against them at the relevant time ((b)(i)-(viii))
•
the person has been found guilty of an offence but in
circumstances that are not directly relevant to the situation in
which the discrimination arises ((b)(ix)).
8.3.
Paragraphs (a) and (b)(ix) of the definition are straightforward and
state simply what I have identified as the first and third ways in
which a person can have the attribute of ‘irrelevant criminal record’.
As to (a), the question of a spent record does not arise on the facts of
this case. As to (b)(ix), there was no argument and no evidence was
led, perhaps because the provision assumes a finding of guilt, which
Mr Pereira denies.
10
8.4.
Paragraphs (b)(i)-(viii) of the definition specify different ways, in
common law criminal procedure, by which a person who has been
arrested, interrogated or subject to criminal proceedings, could have
no charge, prosecution, or conviction against them.
8.5.
When assessing the evidence to see if it describes any of the
circumstances in (b)(i)-(viii), a difficulty is that the relevant facts
occurred in East Timor.
An assumption that was made in these
proceedings is that concepts in the AD Act such as record,
interrogation, charge, finding of guilt, quashing and pardon, for
example, have the same meaning in East Timor as they have in the
Northern Territory, and that we should find in an account of an
experience of the East Timorese criminal justice system the same
indications of the stages and results of criminal procedure that we
would expect to find in our common law system.
I understand,
however, that the legal system in East Timor to be essentially a civil
law system rather than the common law system within which the AD
Act was drafted and operates, and that the system of criminal justice
in East Timor was, in 2002-2003, some combination of Portuguese
and Indonesian law and procedure, and rules of criminal procedure
promulgated by the United Nations Transitional Administration in
East Timor. Accordingly. an assumption that concepts in common
law criminal proceedings are the same in East Timorese criminal
proceedings is perhaps unwarranted. But this assumption explains
to an extent the difficulty that Mr Pereira has had in being able to
say, from his own experience, whether he was arrested, what the
nature of the proceedings were, and whether and how the
proceedings were finalised.
8.6.
As I have said above, I am satisfied that Mr Pereira was arrested, and
was the subject of criminal proceedings.
The next question, as I
have phrased it, is whether, at the relevant time, Mr Pereira was the
subject of charge, prosecution, or conviction.
11
8.7.
I have reviewed the evidence to see what it tells me about what
happened in the criminal proceedings that followed Mr Pereira’s
arrest.
8.8.
In Mr Pereira’s affidavit (Exhibit A1), after he says that he attended a
hearing the nature and detail of which he did not understand, he
says that he was detained in ‘protective custody’, from which he was
released on or about 21 January 2003 by order of the Attorney
General. He says he then left East Timor and has not returned. In
Mr Pereira’s oral evidence, after saying that he attended ‘what I think
was a hearing’, he says ‘I really don’t know what happened, because
they were speaking Bahasa Indonesia … at the end I was told that I
was going to spend 30 days in prison’.
8.9.
Mr Pereira attaches to his affidavit two documents which he says
help to explain what happened in the proceedings. The first, RP2, is
a translation of Mr Pereira’s statutory declaration, dated 21 January
2003, and witnessed by Dr Longuinhos Monteiro. The translation,
dated 16 September 2008, is by the NT Interpreting and Translation
Service. Mr Pereira declares that ‘after the annulation / filing of my
lawsuit due to the procedural circumstances which this law suit
engendered, this lawsuit will be held in camera’. He declares as that
‘I will never again mention anything in relation to the developments
which took place in Dili during the period of October to December
2002, and/or claim any compensation (for psychological damage)
from the Timorese Government in relation to this case’s procedural
acts’. I do not understand the meaning of document RP2 and cannot
see its relevance.
8.10.
The second document, RP3, is said by Mr Pereira in his statement to
be ‘a true copy of a certificate provided by Dr Longuinhos Monteiro’.
The document is undated, although it can be inferred from its terms
that it was created on or after 21 January 2003, and Mr Pereira’s
evidence is Dr Monteiro signed it on 21 January 2003.
In the
document Dr Monteiro states in English ‘[I] hereby declare that the
12
matter surrounding Rui Pereira in East Timor in 2002, was quashed.
Furthermore, Rui Pereira was never charged or convicted of any
offence. Due to the art. 36 of the Constitution of Timor-Leste, Rui
Pereira was sworn to state secrecy of justice by my office on the 21st
of January 2003’.
8.11.
Exhibit R5 is a letter, in English, dated 17 January 2003, from Mr
Pereira’s legal representatives to officers of the East Timorese court:
the Deputy General Prosecutor, the District Prosecutor and the
Investigating Judge.
The letter states that the court had, on 19
December 2002, ‘granted a conditional release to [Mr Pereira] under
several conditions among others, a payment of security money of US
$15,000’.
The letter makes a request of the Deputy General
Prosecutor that ‘the investigation process into the case … be closed’.
8.12.
Exhibit R6 is a translation of what appears to be court record, and
Exhibit R7 is a translation of a letter; I have described both of them
above at paragraphs 7.7 – 7.9.
8.13.
Exhibits 5, 6 and 7 support a finding that Mr Pereira was arrested,
charged and the subject of criminal proceedings. Document R3 does
not persuade me otherwise.
8.14.
Document RP3 records a statement by the Attorney General Dr
Monteiro in late January 2003 that ‘Rui Pereira was never charged’,
but I cannot reconcile that statement with documentary evidence
that he was charged.
Further, in Document RP3 the Attorney
General states that ‘Rui Pereira was … never convicted’, but that is
not probative of the issue because there is no evidence, or any claim
by Mr Pereira, that a trial had taken place at that time. Finally, in
Document RP3 the Attorney General states that ‘the matter … was
quashed’, but I do not understand the meaning of that statement; if
it means – as it would in Australia – that a conviction no longer
stood, then I cannot reconcile it with the concurrent statement that
Mr Pereira was never charged or convicted, or with documentary
evidence that proceedings involving Mr Pereira continued until 2004.
13
8.15.
On the evidence, I am satisfied that some form of court proceedings
concerning Mr Pereira continued until April 2004.
proceedings concluded in his absence.
Those court
There is, however, no
evidence that relates to the entering of a conviction. The references
in Exhibit R3 to ‘judgment was passed’, and to the ‘ruling’ of the
judge, do not refer to a conviction.
8.16.
It is possible that the proceedings that continued were what would
be recognised in our legal system as a civil claim for damages and
not a criminal prosecution; the references to ‘judgment’ and ‘ruling
are consistent with that view.
But at the same time, the court’s
having ordered forfeiture of the $15,000 that had been paid to secure
Mr Pereira’s release from detention suggests that the proceedings
were criminal proceedings. Exhibit 6 is a translation of a document
that records proceedings that took place in a legal system different
from our own, and while it is evidence of proceedings, I cannot
confidently infer from it that they were ‘criminal proceedings’.
8.17.
Because of the difficulty of equating the records of East Timorese
legal process with terms used in (b)(i)-(viii) to describe common law
criminal legal process, I have, in the preceding paragraphs, taken
what I think is the generous approach of looking at the evidence in
light of the general effect of (b)(i)-(viii), asking whether Mr Pereira –
having been arrested and the subject of criminal proceedings – was
the subject of charge, prosecution or conviction at the relevant time.
Because the evidence does not establish what became of the charges
Mr Pereira faced and of the proceedings he was subject to, I cannot
satisfied that, at the relevant time, Mr Pereira was not the subject of
charge, prosecution or conviction.
9. THE EXISTENCE OF OTHER CIRCUMSTANCES: A SPECIFIC APPROACH
9.1.
Assessing the evidence against the precise terms of (b)(i)-(viii) leads
me to the same conclusion. Looking first at (b)(i) of the definition, Mr
Pereira’s own evidence is that further action was taken after his
arrest, and the documentary evidence supports that. Accordingly, I
14
am not satisfied that the record relating to his arrest is one in
relation to which no further action was taken.
9.2.
Looking next at (b)(ii) of the definition, the only evidence before me
that Mr Pereira was not charged is in RP3, which I deal with at
paragraph 8.14 above. Against that, there is probative documentary
evidence that Mr Pereira was charged. In the circumstances I am
not satisfied that the record relating to his arrest, or the record
relating to criminal proceedings are records where no charge has
been laid.
9.3.
Looking next at (b)(iii) of the definition, the evidence establishes that
there were court proceedings. The evidence does not enable me to
say whether, when or how the criminal charges were resolved.
9.4.
Looking next at (b)(iii)-(viii), the only evidence before me that Mr
Pereira was not charged, that the prosecution was withdrawn, that
Mr Pereira was discharged, that Mr Pereira was found not guilty,
that a finding of guilt was quashed or set aside, or that Mr Pereira
was granted a pardon, is document RP3 which I deal with at
paragraph 8.14 above. There is probative evidence – in Exhibits 6
and 7 – that after the Attorney General signed RP3 Mr Pereira
continued to be the subject of proceedings during 2003 and until
April 2004 but they do not support a finding as to whether, when
and how the criminal charges were resolved. I therefore cannot be
satisfied that the record relating to an arrest or the record relating to
criminal proceedings is a record where the charge was dismissed
((4)(b)(iii)), where the prosecution was withdrawn ((4)(b)(iv)), where Mr
Pereira was discharged ((4)(b)(v)), where Mr Pereira was found not
guilty ((4)(b)(vi)), where a finding of guilt was quashed or set aside
((4)(b)(vii)), or where Mr Pereira was granted a pardon ((4)(b)(viii)).
10. MR PEREIRA’S BELIEF
10.1.
Mr Pereira left East Timor while proceedings were under way and
has not returned. I accept what Mr Pereira says, that he never fully
15
understood what the proceedings were about.
In his ignorance of
what the proceedings were about and of what happened after he left
East Timor, Mr Pereira has relied on the statement of the Attorney
General that he was no longer the subject of charge, prosecution or
conviction.
He may also have believed that the legal proceedings
that continued were proceedings for compensation and were not
criminal proceedings, although he has said nothing, and has offered
no evidence, to that effect.
10.2.
In Mr Pereira’s view, therefore, although he has a record of arrest
and of criminal proceedings, there is no related charge, prosecution,
or conviction against him. That is in fact how counsel for Mr Pereira
put Mr Pereira’s case in submissions (my emphasis): ‘as far as Mr
Pereira was concerned, no charge was laid against him (etc)’. Based
on his view of what had happened, Mr Pereira made a discrimination
complaint premised on his having the attribute of an irrelevant
criminal record. The evidence does not, however, support his view,
and leaves open the possibility that there is a conviction against him.
10.3.
To meet the very precise requirements of the AD Act (see paragraph
13.1 below), Mr Pereira needs to have clearly explained the
proceedings to which he was subject in East Timor, and led evidence
to prove when and how those proceedings concluded. In fact, I am
not satisfied that Mr Pereira has given the best account he can of
what happened between November 2002 and January 2003, quite
apart from making further inquiries to establish what the final
outcome of the proceedings were.
For example, Mr Pereira has
consistently relied on his ignorance of the language and confusion as
to the nature of the proceedings to say that he did not know if he
had been arrested and charged. In my view this is not consistent
with evidence that he was legally represented and that he had the
active support of his wife, and I am not satisfied that Mr Pereira was
as ignorant of the nature of the proceedings as he has said he was.
Further, Mr Pereira has given evidence that the Attorney General
16
intervened to release him from custody; in my view this is not
consistent with evidence that that he was released after 30 days
detention by order of the court on payment of $15,000 surety.
10.4.
Mr Pereira’s evidence gives a less clear account of what happened to
him in East Timor than is given by the documentary evidence. The
documentary evidence leaves open the real possibility that Mr
Pereira was at the relevant time the subject of a conviction in East
Timor.
10.5.
Taking account the whole of the evidence, I am not satisfied that at
the
time
the
Police
Commissioner
terminated
Mr
Pereira’s
employment, Mr Pereira was not the subject of conviction.
I am,
therefore, not satisfied that Mr Pereira had an irrelevant criminal
record at the relevant time.
11. POLICE COMMISSIONER’S BELIEF AS TO IRRELEVANT CRIMINAL
RECORD
11.1.
In his submissions, counsel for Mr Pereira, having argued the case
for Mr Pereira’s having an irrelevant criminal record, then says ‘in
any event, the evidence clearly demonstrates that as far as [officers
of the Police Commissioner] were concerned, they had proceeded on
the basis that records may exist revealing a criminal record’. The
submission refers to two Annexures to the affidavit of Senior
Sergeant Gabolinscy (Exhibit R3): DG21, which is a report from
Senior Sergeant Gabolinscy to Acting Superintendent Kerry James,
dated 17 July 2008, and DG22 which is a report from Acting
Superintendent James to ‘Commander, Ethical and Professional
Standards Command’ dated 30 July 2008.
11.2.
As counsel for Mr Pereira observed, whether there exists an
irrelevant criminal records seems to be a mixed question of law and
fact. A person would not characterise their belief as to certain facts
as a belief in the existence of an irrelevant criminal record as defined
by the AD Act.
Rather, the question is whether the Police
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Commissioner, through his officers, had a belief as to certain facts
which we can now see satisfy the definition in s 4 of the AD Act. In
the simplified terms I set out at paragraph 8.2 above, the Police
Commissioner would have to have believed that Mr Pereira had been
arrested, interrogated or the subject of criminal proceedings, and
that he was, at the relevant time, the subject of charge, prosecution
or conviction.
11.3.
The Police Commissioner did not lead evidence directly on the issue
of his officers’ belief about what had happened to Mr Pereira in East
Timor, and it was not part of the Police Commissioner’s case to do
so. Evidence led by the Police Commissioner shows that the officers
were aware that Mr Pereira had been detained and that there had
been proceedings, but it also shows that they did not know whether
or how those proceedings had been resolved.
11.4.
Mr Pereira told the police that he had not been arrested and had not
been charged, presumably because at the time that was how he
understood what had happened (see paragraphs 10.1 – 10.2 above).
He told the police that the matter in East Timor had been resolved,
but the police did not accept this. In DG21, for example, Senior
Sergeant Gabolinscy writes that ‘[Mr Pereira’s] account of the
incident cannot be accepted at face value’, that in her view
discovering the ‘official outcome of [Mr Pereira’s] proceedings would
require significant background checking through such agencies as
Interpol and AFP’, and that ‘[n]otwithstanding that various enquiries
can be commenced with authorities in relation to the details of this
incident [t]here is no guarantee that authoritative or conclusive
information
can
be
obtained’.
Similarly,
in
DG22
Acting
Superintendent James says of Mr Pereira’s account ‘it [is] very
difficult to verify or refute’.
11.5.
Acting Superintendent James was not called for cross-examination.
Senior Sergeant Gabolinscy was cross-examined, and it was not
suggested to her that at the relevant time she believed that Mr
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Pereira had been arrested, interrogated or the subject of criminal
proceedings, or that he was, at the relevant time, the subject of
charge, prosecution or conviction. It was not suggested to her that
she believed any of the circumstances in the definition of ‘irrelevant
criminal record’ to have been the case for Mr Pereira.
The
documents RP2 and RP3 are not among a bundle of documents that
Senior Sergeant Gabolinscy says she considered when writing her
report, and it was not suggested to her that she had seen those
documents.
11.6.
The evidence shows that the Police Commissioner, through his
officers, had material before them that indicated that Mr Pereira had
been arrested and charged and was the subject of criminal
proceedings. But the evidence also shows that they did not know if
Mr Pereira had in fact been arrested and charged and subject to
proceedings, and they did not know whether and how any such
proceedings had been resolved.
11.7.
On the evidence, I am not satisfied that at the relevant time the
Police Commissioner, through his officers, had a belief that there
existed circumstances concerning Mr Pereira that met the definition
in s 4 of the AD Act of an irrelevant criminal record. That is, I am
not satisfied that at the relevant time the Police Commissioner,
through his officers, had a belief that Mr Pereira had been arrested,
interrogated or the subject of criminal proceedings, and was at the
time the subject of charge, prosecution or conviction.
12. FINDING AND ORDER
12.1.
Because I am not satisfied that Mr Pereira had an irrelevant criminal
record (as defined) at the relevant time, or that the Police
Commissioner believed at the relevant time that he had an irrelevant
criminal record, I have no jurisdiction to inquire into Mr Pereira’s
complaint, and I am unable to proceed to decide why Mr Pereira’s
employment was terminated and whether the termination was less
favourable treatment.
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12.2.
Having heard the complaint, I find the prohibited conduct alleged in
the complaint is not substantiated, and I make an order under s
88(4) dismissing the complaint.
13. POLICY OBSERVATION
13.1.
Mr Pereira has failed to meet the relatively narrow requirements of
the AD Act.
A broader approach could, for example, prohibit
discrimination on the basis of an involvement in the criminal justice
system which is not directly relevant to the situation in which the
discrimination arises; that approach us currently limited to a finding
of guilt in (b)(ix) of the definition. The approach of the AD Act is to
prohibit discrimination only when involvement in the criminal justice
system is of a particular type (arrest, interrogation or proceedings)
and when a particular result has been reached (eg, acquittal, pardon
etc).
13.2.
As I noted in paragraph 6.2 above, the AD Act presumptively defines
what is an ‘irrelevant’ involvement in the criminal justice system. As
a result, a person whose involvement differs from the prescribed type
or led to a different result, or who cannot prove precisely what the
nature of the involvement was, has no opportunity to say that that
involvement is an irrelevant consideration, and is not protected from
discrimination. The present case suggests that an inability to prove
precisely the nature of involvement may arise particularly where it
occurred was in another jurisdiction.
14. COSTS
14.1.
I note the presumption in s 96(1) AD Act that each party shall pay
their own costs.
I note too the discussion in Berice Anning v
Batchelor Institute of Indigenous Tertiary Education (costs) [2007]
NTADComm 2, paragraphs 3-15, of the nature of the costs discretion
in s 96(2), and the conclusion at paragraph 16 of that decision that
‘the costs discretion … should only be exercised in exceptional
circumstances, starting with the presumption that each party must
20
bear their own costs in relation to the complaint’.
Nevertheless,
because of the power that exists under s 96(2) I am obliged to give
the Police Commissioner leave to apply for an order if he wishes. If
the Police Commissioner does so he must do file and serve within 14
days of this decision; if Mr Pereira wishes, he may file and serve a
reply within a further 14 days.
Simon Rice
Hearing Commissioner
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